Reference: FER0829694 Freedom of Information Act 2000(FOIA) Environmental Information Regulations 2004 (EIR) Decision notice Date: 12 May 2020 Public Authority: Wimbledon and Putney Commons Conservators Address: Manor Cottage Windmill Road Wimbledon Common London SW19 5NR Decision (including any steps ordered) 1. The complainant has requested information regarding an agreement to exchange land between Wimbledon and Putney Commons Conservators (WPCC) and Royal Wimbledon Golf Club (RWGC). 2. WPCC refused to comply with the request on the basis that it was manifestly unreasonable, citing regulation 12(4)(b). 3. The Commissioner’s decision is that WPCC is entitled to rely on regulation 12(4)(b) to refuse to comply with the request and that in the circumstances of this case, the public interest lies in maintaining the exception. 4. The Commissioner does not require the public authority to take any steps. Background 5. Wimbledon and Putney Commons is a charity managed by WPCC. It was established under The Wimbledon and Putney Common Act 1871 (the 1871 Act). The Commons comprise some 1140 acres across Wimbledon Common, Putney Heath and Putney Lower Common. 1 Reference: FER0829694 6. Under the 1871 Act, it is the duty of the Conservators (five elected and three appointed) to keep the Commons open, unenclosed, unbuilt on and their natural aspect preserved. 7. Wimbledon and Putney Commons is largely funded by a levy on local residents which is administered through the Council Tax collected by three councils, namely Wandsworth, Merton and Kingston. 8. The Commissioner understands that arrangements between WPCC and RWGC date back to as early as 1954. At this time a seven year licence between the two organisations was agreed, allowing RWGC to utilise part of the Commons as a parking area for motor vehicles for members and guests of RWGC. The agreement required RWGC to reinstate the land as grass upon termination of the licence, and it was prohibited from erecting or placing any form of building on the site. RWGC was permitted to erect signage stating that the area comprised the RWGC car park. 9. In the late 1970s, WPCC was required to find land upon which it could erect a maintenance building. Under the 1871 Act, WPCC cannot build upon the Commons and it therefore needed to acquire a site which was not part of the Commons. In 1979, WPCC and RWGC entered into reciprocal agreements in which WPCC was given permission to build a maintenance shed on RWGC land and, in exchange, WPCC agreed to provide a licence to RWGC to use the area of the Commons next to the golf club as a car park. 10. In 2005, the agreement was updated via a Deed of Variation which clarified that RWGC is entitled to exclusive use of the car park ,but could not prevent members of the public from crossing the car park to access the Commons. Request and response 11. On 5 November 2018, the complainant wrote to WPCC and requested information in the following terms: “Freedom of Information/Environment Information Regulations – WPCC/Lease of land to the Royal Wimbledon Golf Club for a private car park I wish to make a request under FOI/EIR in respect of the lease of land by the WPCC to the RWGC. As you are aware the 1871 Act states that it is unlawful for the Conservators to sell, lease, grant or in any manner dispose of any part 2 Reference: FER0829694 of the commons. The lease of land to the RWGC for a private car park is a material breach of the Act and is unlawful. The Commons are kept “forever open and unenclosed” and the grant of a substantial cap park for the private benefit of a golf club cannot be squared with this legal obligation At the time of the sale of the lease, the charity trustees will have received professional advice, including the value of the land leased to the RWGC. The professional advice will have been in the form prescribed by charity law. 1. Copies of all “Qualified Surveyors Reports” and/or “valuations” and/or “valuation advice” (whether in formal reports/otherwise) procured by the WPCC up until the lease was granted. 2. If there was subsequent advice in respect of value, post the grant of the lease, I wish to receive that advice as well. 3. Copies of all other professional advice received at the time of the sale (ie from Counsel or solicitors etc acting for the WPCC), for example that the sale was in breach of the act, and unlawful. 4. Copies of all other information which is held in respect of the sale (ie correspondence between management/trustees/advisers/insurers and so on).” 12. WPCC provided its response on 23 November 2018. WPCC confirmed that it is not subject to the FOIA but is subject to the EIR in respect of environmental information that it holds. In response to the request WPCC explained that it had never entered into a lease or sale arrangement with RWGC for lands that comprise any part of the WPCC. It set out that it therefore interpreted the request as being for information relating to the exchange of use of two parcels of lands in the 1970s. WPCC provided a summary of the history of that exchange. 13. WPCC further stated that it was refusing to comply with the complainant’s request on the basis of regulation 12(4)(b) as it considered the request was manifestly unreasonable. 14. On 2 December 2018, the complainant requested an internal review of the handling of his request for information. He disputed that his request for information was manifestly unreasonable and explained that he considered this request was reasonable due to the alleged behaviour of the WPCC Board. The complainant also disputed WPCC’s statement that it had not entered into a lease. 15. On 10 December 2018, WPCC acknowledged the complainant’s request for an internal review. WPCC also offered to meet with the complainant to attempt to resolve the issue informally. WPCC confirmed that if he was still dissatisfied following this meeting, it would undertake an 3 Reference: FER0829694 internal review. A meeting took place on 14 December 2018 and it was agreed that WPCC would proceed with the internal review. 16. On 10 January 2019, the complainant advised WPCC that he had obtained legal advice regarding the agreement which is the subject of this request. 17. On 11 January 2019 confirmed that the internal review was progressing and a response would be provided by 30 January 2019. 18. On 14 January 2019 WPCC asked the complainant for a copy of the legal advice obtained. It also set out that as the complainant had decided to pursue his complaint via another authority, namely the Charity Commission, it would not progress the internal review any further. This was in line with WPCC’s complaints procedure. 19. On 15 January and 1 February 2019, the complainant contacted WPCC. Among other issues, he asked to be put in touch with the independent person appointed to conduct the internal review. 20. WPCC responded on the same day and confirmed that it would not proceed with the internal review unless instructed to do so by the Commissioner. 21. The complainant subsequently contacted the Commissioner, who wrote to WPCC on 21 March 2019. The Commissioner asked it to complete the internal review into the handling of the complainant’s request for information. 22. WPCC provided the outcome of its internal review on 11 April 2019. It upheld the original response and reliance on regulation 12(4)(b). Scope of the case 23. The complainant contacted the Commissioner on 12 April 2019 to confirm that he was dissatisfied with the outcome of the internal review and requested the Commissioner investigate WPCC’s reliance on regulation 12(4)(b). 24. The Commissioner considers that the scope of this investigation is, therefore, to determine whether WPCC is entitled to rely on regulation 12(4)(b) to refuse to comply with the complainant’s request. She will not comment on whether the decision to exchange land with RWGC was lawful. 4 Reference: FER0829694 25. The Commissioner emphasised to the complainant that her role is to decide whether a particular request has been handled in accordance with the requirements of the EIR. She cannot comment on or become involved in the complainant’s dispute with WPCC or make any finding with regard to WPCC’s compliance with other legislation. Reasons for decision Regulation 12(4)(b): manifestly unreasonable request 26. Regulation 12(4)(b) of the EIR provides an exception from disclosure to the extent that the request is manifestly unreasonable. The term “manifestly unreasonable” is not defined in the EIR. However, the Commissioner follows the lead of the Upper Tribunal in Craven v Information Commissioner & DECC.1 27. In Craven, the Tribunal found that there is, in practice, no difference between a request that is vexatious under the Freedom of Information Act 2000 and one which is manifestly unreasonable under the EIR – save that the public authority must also consider the balance of public interest when refusing a request under the EIR. The Commissioner is therefore guided by the Tribunal’s approach to identifying vexatious requests, in addition to her published guidance. 2 28. A differently constituted Upper Tribunal considered the issue of vexatious requests in Information Commissioner v Devon CC & Dransfield3. The Upper Tribunal’s approach, subsequently upheld in the Court of Appeal, established that the concepts of proportionality and justification are relevant to any consideration of whether a request is vexatious. The Commissioner is of the opinion that these concepts are equally relevant when assessing whether a request for environmental information is manifestly unreasonable.